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Delhi High Court rejects plea by WhatsApp regarding new privacy policy, upholds probe order by CCI

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The Delhi High Court on Thursday dismissed a petition filed by the social media giants WhatsApp and it’s parent company Meta (earlier Facebook), challenging the order of the Competition Commission of India (CCI), regarding the new privacy policy of the messaging app. 

The Division Bench comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed that the appeals were devoid of merits and disposed of the plea, which challenged the Single-Judge Bench order of April, 2021.

Justice Navin Chawla had last year quashed the petition filed by the social giants, while observing that it was devoid of merits.

After the single judge bench refused to grant them relief, WhatsApp and Facebook had approached the Division Bench in appeal.

Senior Advocate Harish Salve who appeared for WhatsApp and argued that it was not challenging the investigation, but rather the CCI’s jurisdiction to probe the matter.

Salve also submitted that the Commission had called for a probe into its privacy policy which has now been suspended as the Central government is in the process of framing a Data Protection Bill, the cause of action in the matter has disappeared.

He said “If they allow our privacy policy, we will have it. If they don’t, we won’t.”

Fecebook was represented by  Senior Advocate Mukul Rohatgi, stated that WhatsApp and Facebook are two different entities. He added that its true that the Facebook is WhatsApp’s formal owner and the messaging platform is said to share its data with the parent company, doesn’t mean that it is a necessary party to the probe.

“The fact that WhatsApp can share items with certain people does not mean they could all be the necessary parties. These policies are not my policies. Whether it breaches the right to privacy is to be seen but merely because they share it with X, Y or Z is not a ground to investigate me,” the Senior Counsel argued.

Mukul Rohatgi further said that the challenge to WhatsApp’s privacy policies of 2016 as well as 2021 are pending before courts, judicial discipline demands that CCI does not act in this manner.

He submitted “They are asking me to show my revenue and balance sheet. It is not an accounting issue. If the highest court in the land is seized of the matter, I dare say, it is a matter of judicial discipline that they not act in this manner.”

The Additional Solicitor General (ASG) N Venkatraman  who represented CCI said  that WhatsApp’s 2021 privacy policy is still in place and that the Commission has not been able to proceed against the company despite a previous High Court order.

He added that the single-judge had refused to stay the CCI probe into WhatsApp’s privacy policy in April 2021, even after that the Commission has not been able to proceed in the matter, due to pending appeals before the Division Bench.

There is no stay on the single-judge’s order, the ASG pointed out.

“We succeeded in April 2021. We have a judgment against them. There is no stay. We issued two probe notices. There are reasons strong enough to proceed. Still, 15 months later, we have not been able to proceed.”

The ASG Venkatraman argued that although a statement has been made by WhatsApp that it does not force anyone to share their data, the pop up shows up, till the time user finally agrees to conditions, which is a tricky breech

Tech giant Meta had, in July 2022, termed the actions of CCI as intrusion in its business and said that there was no  proof to substantiate the claim that it was abusing the market dominance.

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